IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRENDA HORN, et al., : 

 : 

 Plaintiffs, : Case No. 12-CV-567 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

HUSQVARNA CONSUMER OUTDOOR : 

PRODUCTS N.A., INC., et al., : Magistrate Judge Terence Kemp 

 : 

 Defendants. :

OPINION AND ORDER 

I. INTRODUCTION 

 This matter is before the Court on Defendant’s Motion to Dismiss Count VII of 

Plaintiffs’ Second Amended Complaint (Doc. 8). (Doc. 14) For the reasons stated herein, 

Defendant’s Motion to Dismiss is GRANTED. Although Defendant Husqvarna Consumer 

Outdoor Products N.A., Inc. (“Husqvarna”) moves only on behalf of itself, the legal basis of the 

Motion requires Count VII be dismissed with regard to all parties. 

II. BACKGROUND 

On April 19, 2012, Plaintiff Brenda Horn leased a riding lawn tractor manufactured by 

Defendant Husqvarna from Defendant Aaron’s, Inc. (“Aaron’s”). The following day, April 20, 

Plaintiff Brenda Horn alleges she injured her foot while operating the lawn tractor. Plaintiff 

originally filed this suit in Franklin County Court of Common Pleas on May 8, 2012. On June 

25, 2012 Defendant Husqvarna removed the suit to this Court on the basis of diversity, 28 U.S.C. 

§1332, with the consent of Defendant Aaron’s. Plaintiffs’ Second Amended Complaint lists 

eight claims under Ohio law. Count VII, which does not cite a statute and is construed as a claim 

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under common law, is for “Breach of Warranties/Merchantability & Fitness for Particular 

Purpose.” (Doc. 8 at 19) Defendant Husqvarna now moves to dismiss Count VII. Plaintiffs 

have failed to respond to Defendant’s Motion for the past six months, far in excess of the 21-day 

window. The Court considers Plaintiffs’ to have forfeited their response in opposition. Thus, 

Defendant’s Motion to Dismiss is fully briefed and ripe for adjudication. 

III. STANDARD OF REVIEW 

 A case may be dismissed if the complaint does not state a claim on which relief can be 

granted. Fed. R. Civ. P. 12(b)(6). A “motion to dismiss for failure to state a claim is a test of the 

plaintiff’s cause of action as stated in the complaint, not a challenge to the plaintiff’s factual 

allegations.” Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). Consequently, 

the Court must construe the complaint in the light most favorable to the non-moving party, 

accept all factual allegations as true, and make reasonable inferences in favor of the non-moving 

party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 

434 (6th Cir. 2008); Murphy v. Sofamor Danek Gp.,Inc., 123 F.3d 394, 400 (6th Cir. 1997). 

The Court is not required, however, to accept as true mere legal conclusions unsupported by 

factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007)). 

Although liberal, the Rule 12(b)(6) standard requires more than a bare assertion of legal 

conclusions to survive a motion to dismiss. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 

1993) (citation omitted). The complaint must “‘give the defendant fair notice of what the claim 

is, and the grounds upon which it rests.’” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) 

(quoting Erickson v. Pardus, 551 U.S. 89 (2007)). While a complaint need not contain “detailed 

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factual allegations,” its “[f]actual allegations must be enough to raise a right to relief above the 

speculative level.” Twombly, 550 U.S. at 555 (2007). A complaint that suggests “the mere 

possibility of misconduct” is insufficient; rather, the complaint must state “a plausible claim for 

relief.” Iqbal, 556 U.S. at 679 (2009) (citing Twombly, 550 U.S at 556). 

IV. LAW & ANALYSIS

 Defendant Husqvarna moves to dismiss Count VII on the grounds that The Ohio Products 

Liability Act (“OPLA”), under which Plaintiffs allege Counts I through VI, states that it is 

“intended to abrogate all common law product liability claims or causes of action.” Ohio Rev. 

Code Ann. § 2307.71(B) (West). On its face, OPLA eliminates common law product liability 

claims under Ohio law. This Court has consistently adopted that interpretation of OPLA. In 

Miller v. ALZA Corp, 759 F.Supp.2d 929, 943 (S.D. Ohio 2010), this Court found “Plaintiff’s 

[product liability] claims for breach of the implied warranty of fitness and breach of express 

warranty [] have been abrogated by Ohio’s Product Liability Act.” See also Hempy v. Breg, Inc.,

No. 2:11-CV-900, 2012 380119 (S.D. Ohio Feb. 6, 2012). In light of this explicit abrogation, no 

set of facts or favorable inferences would allow Plaintiffs to recover under Count VII. 

Significantly, OPLA provides specific provisions for recovering for such alleged breaches of 

merchantability, warranties, and fitness. See Ohio Rev. Code Ann. §§ 2307.75, 2307.77. 

Plaintiffs’ right to be made whole is not impaired by OPLA’s abrogation of common law product 

liability. Count VII of Plaintiffs’ Second Amended Complaint must, therefore, be dismissed 

with prejudice. Although Defendant Husqvarna moves to dismiss on its own behalf, Count VII 

is legally insufficient with regard to all Defendants and is, thus, dismissed against all Defendants. 

V. CONCLUSION

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 For the reasons stated above, Defendant’s, Motion to Dismiss Count VII of Plaintiffs’ 

Second Amended Complaint (Doc. 14) is GRANTED. Count VII (Doc. 8) is hereby 

DISMISSED. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 

DATED: February 26, 2013 

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